On The Judgment Of Fair Use Of Derivative Works By Transformative Use Standard

Copyright’s fair use is a typical part of copyright laws to show the balance between exclusive rights and public interest,and also is a common defendant’s reason.Fair use in The Copyright Law of China appears a clause with 12 enumerated situations,and also is mentioned in judicial interpretations of copyright law,which adopt some standards from four factors in the U.S copyright law and 3 Steps Analysis in TRIPS.In addition,transformative use standard become a dominate consideration to in determining whether the use successes fair use analysis in U.S courts.The transformative firstly described by Pierre N.Leval in Toward a Fair Use Standard.In Campbell v Music,Inc.,the American Supreme Court,in analyzing the first fair factor from copyright law,and described the meaning of transformative.The standard makes fair use analysis easy,because it need not to separate the expression from two works,which is the most difficult part for courts,and it need not to compare them after separating.As some scholars said,the more possible to success in fair use,the more transform use.But,the emphasis on transformative is misunderstanding,which may infringe the copyright owner’s exclusive right to prepare derivate works,because the definition of derivative work,that any form in which a work may be transformed.It is time to figure out that the connection and different between fair use transformativeness when any transformation involved in derivative works.The article includes 4 parts:Part 1 analyses the difficulties when judicial and legislative functions involved fair use,and focuses on when the cases related to derivative works is increasing,derivative works’ characteristics are more easily overlooked in the fair use.The emergence of transformative use standard effectively avoids difficulties in analyzing works content.It has become a new method to solve the problem of fair use,but it also concerns the over-understanding of transformative use due to the nature of deductive works.Part 2 mainly has categories of derivative works through the process how the derivative work is produced,It is found that the incremental originality is a key to the derivative work in that process,and the incremental originality of the derivative work also has an impact on fair use analysis.Part 3 has a new understanding of the concept of derivative works in incremental originality view,and expositions transformative use in more specific view.By figuring out the history of transformative use,and the judicial and legislative practices of China and America,will theoretically concerned about the natural connection of transformativeness in derivative works and transformative use standard in fair use.Further step to the case analyses can know how to make the characteristics of derivative works fitted into the current fair use system.Part 4 is a part through the above theoretical and practical researches,reviewing the transformed use of derivative works in the business world,and proposing litigation strategies with the cases of derivative works,and making advices to China’s copyright law when the new version is discussing.It is clear that transformative use standard and reasonable use of the relationship can be used to better understand the characteristics of deductive works.It is better to make sense of fair use in derivative works cases when clarify the relationship between transformative use standard and fair use in the copyright law.